Document Type : Research/Original/Regular

Authors

• Mohammad Rowshan ¹
• Afsoon Mollazadehnooran ²

¹ Associate Professor, Department of Basic Studies, Family Research Institute, Shahid Beheshti University, Tehran, Iran

² PhD student of family law studies, Shahid Beheshti University, Tehran, Iran

Abstract

In today's era, due to the expansion of literacy and the spread of writing among people, the desire to express one's will in writing or written composition has increased. In the meantime, concluding a marriage contract in writing may also be considered; In such a way that the husband and wife declare their will to marry in writing, or the marriage takes place with a written request and acceptance; Therefore, in the present research, which is a descriptive-analytical method of the content analysis type, the question is raised, what is the written marriage according to the opinion of Islamic jurists and Iranian law? According to the opinion of the famous Shia and Sunni jurists, request and acceptance must be verbal.Therefore, by proving the lack of validity of consensus as the most important reason for the opponents of written marriage, together with proving the validity of the book and its clarity and transparency as words and citing the generality of the need to be faithful to the contract and covenant, the strictness in some verses of marriage and the validity of the book in verse 282 of Surah Al-Baqarah We strengthened the authenticity and legitimacy of the written contract;Therefore, due to the lack of valid evidence on the necessity of the existence of the word and the procedural reputation of the word rather than the subject matter in the opinion of the jurists,based on the evidence of the legitimacy of the written marriage, it is possible to accept the written marriage.

Highlights

Background and Purpose

  In jurisprudential sources, the marriage contract is recognized as a fundamental aspect of marriage. According to many jurists, if individuals who have the authority to officially register marriage choose to enter into a contract through written or gestural means, it is widely believed that such a marriage would be considered invalid. On the other hand, as literacy has been promoted and writing has become more widespread among the population, it has been utilized in various fields, including the execution of legal acts and the documentation of legal possessions. The question now arises as to whether a written marriage contract has the power to make a marriage occur. Is it necessary to use words in a marriage, even though we have the ability to pronounce and speak? Is there a specific form in which the will of the parties must be expressed for marriage?

The primary objective of this research is to demonstrate that the act of offering and accepting in marriage should not be restricted solely to verbal communication. It argues that written declarations can serve as a valid substitute for spoken words in a marriage contract, holding the same significance as conventional marriage practices.

1. Written marriage. A written marriage is a type of marriage that is established through a formal process involving a written offer and acceptance. A written declaration of intent is made by both the husband and wife to enter into a marriage.
2. The opinion of jurists and jurists about the declaration of will through writing in the marriage contract
3. According to the majority of Imami jurists, writing alone is not considered sufficient for a valid marriage. They strongly believe that relying solely on the written marriage contract is incorrect Instead, they emphasize the importance of expressing the intended meaning verbally, as they believe that spoken words hold more weight in conveying intentions and purposes than written words (Aameli, 1993). However, some jurists have argued against the well-known theory by stating, "Writing is not necessarily an allusion, and there is no reason to reject the possibility of accepting an allusion if it clearly signifies the intention of marriage" (Tabatabai, 1995 ).

In Sunni jurisprudence, apart from the Hanafi sect, other sects do not recognize written marriage and view it as figurative. The Hanafis believe that absentee marriage through writing is valid. According to their belief, if one party is absent and sends a letter to the other party offering a contract, and the recipient accepts after reading the letter, the contract will be considered concluded (Al-Zuhaili, 1983).

There are jurists who argue that in today's society, writing has become more important than verbal communication due to the widespread literacy among people. They believe that replacing spoken words with written documents aligns with the demands of the modern era and new legal requirements. Consequently, a written document that clearly expresses the intention of marriage is considered equivalent to verbal communication (Safa'i & Emami 2006).

1. Obstacles to the legitimacy of written marriage

In this section, we discuss the most important reasons for opposing written marriage.

1-1. Quran

There is a difference of opinion among jurists regarding the interpretation of verse 21 in Surah Nisa. Some jurists argue that the phrase "Misqan Qalizan" in this verse refers to the words of the marriage contract. However, another group of jurists has raised concerns about the implications of this interpretation. They believe that the verse should be understood to apply specifically to the conventional case of the marriage contract. In simpler terms, the verse demonstrates that marriage with pronounced words (Siqah) can be considered valid, but it does not suggest that a marriage without pronounced words is invalid. The narration does not clearly indicate the topic of discussion in this manner (Makaram Shirazi, 2003).

1-2. Consensus

One of the primary justifications put forth by critics of formalized marriage is the concept of Ijma. The Imamiyyah jurists have collectively agreed on the indispensability of explicit verbal expressions in the context of marriage. Masum's opinion does not provide evidence of an established consensus and lacks authoritative weight. It is important to note that the concept of "Mohassal" consensus is limited to the era of occultation, and there is no consensus of this nature (Muzaffar, Bita, Vol. 1: 114-116).

1-3. Unity of the meeting of offer and acceptance:

According to jurisprudence, the customary sequence of offer and acceptance is regarded as a requirement for the validity of all contracts (Aameli, Bita,). Contemporary jurists and legal scholars commonly view the criterion of sequence as customary. According to this perspective, as long as an action is not deemed objectionable under customary law, there should be a logical sequence between an offer and its acceptance. This rule also applies to written marriage contracts, where both parties are present but express their intentions in writing. In such cases, there are no issues as long as the offer and acceptance are continuous and the proper sequence is followed. However, in cases where the parties are not physically present, the authenticity of this type of contract can be confirmed based on various factors, such as the speed of the communication methods employed and the specific circumstances surrounding the agreement.

1-4. The possibility of forgery in the writing

Some hadiths identify forgery as the primary reason for rejecting the writings. In a written marriage, certain measures can be taken to enhance reliability and reduce the risk of forgery. These measures include gathering information about the intentions of both parties, considering evidence such as their pre-marital acquaintance and courtship, and ensuring that a written agreement is signed, containing the offer and acceptance. By implementing these precautions, confidence in the validity of the marriage is increased.

2. 2. Proofs of the legality of written marriage

2-1. Quran verses

One of the most significant pieces of evidence supporting the legitimacy of a written marriage is the verse "Ya Ayyuha Allatheena Amanoo Awfoo Bialuqood" [O you who have believed, fulfill [all] contracts] (Ma'idah, verse 1) and the verse "Va Awfoo Bi-Alahd In-Alahd Kan Mas'oulan" [And fulfill [every] commitment. Indeed, the commitment is ever [that about which one will be] questioned] (Israa, verse 34). Hence, any contract that is deemed rational falls under the category of " Awfoo Bi-aluqood" or fulfilling all contracts. Consequently, "Awfoo Bi-aluqood" includes all written contracts.

Furthermore, within certain verses of the Holy Qur'an, God has addressed the legitimacy and legality of concluding a marriage. However, the specific method for formalizing a marriage is not explicitly mentioned, as God has entrusted the manner and rituals of marriage to cultural customs. This can be observed in verse 32 of Surah Noor and verse 3 of Surahs Al-Nisa.

Furthermore, verse 282 of Surah Al-Baqarah, being the longest Surah in the Qur'an, holds significant weight in establishing the legitimacy and veracity of the writings according to the Holy Law. Furthermore, Surah Al-Baqarah, being the longest Surah in the Qur'an, holds significant weight in establishing the legitimacy and veracity of the scripture according to the Holy Law. In particular, verse 282 serves as compelling evidence in this regard. Ayah Sharifa places great emphasis on the quality and conditions of writing, indicating that it is regarded as an independent proof within the holy Shariah (Ardabili,1899: 455).

2-2. Sunnah

One of the narrations that is quoted in various Sunni and Shia sources is a saying that emphasizes the importance of intentions. It is reported that the Prophet, may God's prayers and peace be upon him, said, "Indeed, actions are judged by intentions" (Bukhari,1893,435). According to this rule, the primary and constructive role in transactions lies in the inner intention and will of individuals. Words and other means of expressing one's will only serve as a means of discovery. This point can enhance the legitimacy of a written marriage, in line with the popular belief that special terms are necessary in a marriage.

2-3. Assumptions of the Wise

In contractual matters, it is generally accepted that wise assumptions play a significant role. Consequently, any contract that is deemed approved by the wise falls under the category of " Awfoo Bi-aluqood." This term encompasses all contracts that are documented in writing. Therefore, if written marriage is a common practice in a particular society, it can be considered valid based on the narration of "Likoll Qawm Al-nikah" (Sabhani,1995:398).

Method

Using documents and library search, descriptive and analytical methods have been implemented in the current research plan and analysis has been done by comparing the data.  In this way, the data has been collected, categorized and summarized by searching jurisprudential sources and the opinions of jurists and legal doctrine, and finally conclusions have been drawn.

Results

 Based on what was mentioned in the previous cases, writing as one of the ways of declaring the will by improving literacy and its prevalence among people, has been used in more fields and many legal acts and legal possessions are done in this way; One of these legal possessions is a written marriage; While according to the sayings of the jurists of Islamic schools of thought and the original jurists, the concubine is verbal in marriage. However, a review of jurisprudential and legal sources shows that such a view has no valid reason.

Discussion & Conclusion

After carefully analyzing the evidence and considering the reasons, we have arrived at the following conclusion: The opponents of written marriage argue that there is a lack of valid evidence on the necessity of words in the marriage contract and a lack of consensus. They also claim that the validity of words, in the opinion of jurists, is subjective rather than objective. However, it is important to consider applications and generalities and verses in the Quran that support the idea of a written marriage contract. For example, verses such as " Awfoo Bi-aluqood", verse 3 of Surah Nisa, verse 32 of Surah Noor, and verse 282 of Surah Al-Baqarah provide evidence for the importance of writing in marriage. Additionally, the clarity and transparency of a written contract should not be disregarded. Therefore, denying the validity of a written marriage contract is incorrect, and it can be concluded that acceptance of a written marriage contract is appropriate.

Keywords

• Keywords: will
• marriage contract
• Sigeh
• written marriage

Main Subjects

• Woman and family